Getting Sued for Using Photos of Employees

Are you a Virginia business that uses employee photos to promote your organization or improve employee morale?

Virginia Statute 8.01-40 provides a civil action for the unauthorized use of the name, portrait or picture of any person without their written authorized consent. Exceptions include “public interest” and “newsworthy” uses. 

In Fox v. Encounters Intern.,318 F.Supp.2d 279 (2002), the Court noted the exceptions do not include “items used for advertising purposes or in trade” confirming the Williams v. Newsweek, 63 F.Supp.2d 734 (1999). In Fox, the plaintiffs sued the defendant, operating a mail-order-bride service, claiming improper use of their images. 

The Court did not accept the defendant’s argument that love is a “public interest.” Additionally, the Court noted the Virginia statute does not include implied consent, but rather emphasized the requirement of “written authorized consent.”

To mitigate legal risks, employers should obtain written consent from employees before using their name, portrait or picture for any external purposes. If you wish to include employee images in external promotions, present a standard consent authorization form during the on-boarding process. To obtain consent from existing employees, consider an internal campaign to acquire signatures as part of the annual review process. 

Any written consent form should include opt-out provisions for an employee who wishes to withhold consent.

Additionally, it is advisable to implement clear policies regarding social media use and employee privacy to ensure compliance with Virginia law and avoid potential disputes.

The rules regarding using an employee’s name, image, and likeness vary from state to state. If you operate outside of Virginia, mitigating legal risk includes investigating state-specific requirements.

Looking to craft a consent form for your organization? Think your company could benefit from generating or updating a formal social media policy in your handbook? The Intellectual Property and Labor & Employment teams at Woods Rogers are ready to assist.

Learn more about this topic on a recent What’s the Tea in L&E Episode with Leah Stiegler, Emily Kendall Chowhan, and Tim Bechen.